Ng v Commissioner of the Australian Federal Police

[2022] WASCA 48

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Proceeds of Crime
2. › Restraining orders
3. › Making of restraining orders under ss 18 and 19
4. › Reasonable grounds to suspect property is proceeds of indictable offence or instrument of serious offence
5. › Whether adequate reasons given
6. › Whether proper basis for making orders
7. › Proceeds of Crime Act 2002 (Cth), ss 18, 19, 26, 42, 45
1. Proceeds of Crime
2. › Examination orders
3. › Making of examination orders on ex parte basis
4. › Whether adequate reasons given for proceeding ex parte
5. › Whether court has power to set aside or revoke examination order made ex parte
6. › Proceeds of Crime Act 2002 (Cth), ss 180, 182, 319
1. Constitutional Law (Cth)
2. › Legislative power of the Commonwealth
3. › Whether offence provisions validly enacted
4. › Whether provisions reasonably incidental to heads of power
5. › Criminal Code (Cth), ss 135.1(1), 400.9(1)
6. › Constitution, s 51(ii), s 51(xiii), s 51(xxix), s 51(xxxix)
1. Constitutional Law (Cth)
2. › Judicial power of the Commonwealth
3. › Kable principle
4. › Whether examination order provisions inconsistent with Chapter III
5. › Whether power to make examination order on ex parte basis without provision to set aside order repugnant to judicial process
6. › Proceeds of Crime Act 2002 (Cth), ss 180, 182
7. › Constitution, Ch III

Quick Take

Section 182(2) of the Proceeds of Crime Act 2002 (Cth) does not require a court to determine an application for an examination order on an ex parte basis; it merely requires the court to consider dealing with the application without notice, and the court retains discretion to adjourn to give notice. Despite the absence of any power to set aside or revoke an examination order made ex parte, the availability of a stay under s 319 (including a permanent stay) provides an adequate safeguard such that the provisions are not inconsistent with Chapter III of the Constitution. A court making examination orders on an ex parte basis must give adequate reasons for proceeding ex parte.